Ordered that the order is reversed, on the law, the defendant's motion pursuant to CPL 440.10 to vacate so much of the judgment rendered February 26, 2002, as convicted him of murder in the second degree under Penal Law § 125.25(2) is granted, so much of the judgment as convicted him of murder in the second degree under Penal Law § 125.25(2) is vacated, the sentence imposed on that count of the indictment is vacated, and that count of the indictment is dismissed...
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